BENJAMIN MOORE & CO. v. AETNA CAS.


843 A.2d 1094 (2004)

179 N.J. 87

BENJAMIN MOORE & CO., Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY, Agricultural Excess & Surplus Insurance Company, AIU Insurance Company, Allstate Insurance Company, as successor to Northbrook Excess & Surplus Insurance Company, formerly known as Northbrook Insurance Company, American Centennial Insurance Company, American Continental Insurance Company, American Excess Insurance Company, American Home Assurance Company, American National Fire Insurance Company, American Re-Insurance Company, American Zurich Insurance Company, California Union Insurance Company, Century Indemnity Company, as successor to CIGNA Specialty Insurance Company, as successor to California Union Insurance Company, Century Indemnity Company, as successor to CCI Insurance Company, as successor to Insurance Company of North America and Indemnity Insurance Company of North America, City Insurance Company, Commercial Union Insurance Company, Continental Casualty Company, Continental Corporation, as successor to Harbor Insurance Company, Continental Insurance Company, Employers Insurance of Wausau, as successor to Employers Mutual Liability Insurance Company of Wisconsin, Employers Mutual Liability Insurance Company of Wisconsin, Everest Re-Insurance Company, as successor to Prudential Re-Insurance Company, Executive Risk Indemnity Inc., as successor to American Excess Insurance Company, Federal Insurance Company, Fireman's Fund Insurance Company, First State Insurance Company, Gibraltar Casualty Company, Granite State Insurance Company, Great American Insurance Company, Gulf Insurance Company, Harbor Insurance Company, Hartford Accident & Indemnity Company, Highlands Insurance Company, Home Insurance Company, Home Insurance Company, as successor to City Insurance Company, Indemnity Insurance Company of North America, Insurance Company of North America, Insurance Company of the State of Pennsylvania, International Insurance Company, Lexington Insurance Company, Manhattan Fire & Marine Insurance Company, National Union Fire Insurance Company of Pittsburgh, Pa, New Jersey Property Liability Insurance Guaranty Association, North River Insurance Company, North Star Re-Insurance Corp., Northbrook Excess & Surplus Insurance Company, Northbrook Insurance Company, Pacific Employers Insurance Company, Prudential Re-Insurance Company, Puritan Insurance Company, Royal Indemnity Company, TIG Premier Insurance Company, as successor to Transamerica Premier Insurance Company, Transamerica Premier Insurance Company, Transit Casualty Company, Transportation Insurance Company, Travelers Casualty & Surety Co., as successor to Aetna Casualty & Surety Co., United States Fire Insurance Company, and Westport Insurance Corporation, formerly known as Puritan Insurance Company, formerly known as Manhattan Fire & Marine Insurance Company, Defendants, and Lumbermens Mutual Casualty Company, Defendant-Respondent.

Supreme Court of New Jersey.

Decided March 24, 2004.


Attorney(s) appearing for the Case

Paul E. Breene, Newark, argued the cause for appellant (Anderson Kill & Olick, attorneys). Katherine E. Tammaro, a member of the Illinois bar, argued the cause for respondent (Tressler, Soderstrom, Maloney & Priess, attorneys; Ms. Tammaro and Albert C. Hilber, on the briefs).

Arnold L. Natali, Jr., Newark, argued the cause for amici curiae CSR Limited and Island Transportation Corp. (McCarter & English, attorneys; Mr. Natali and Andrew T. Berry, of counsel; Mr. Berry, J. Wylie Donald and Alissa Pyrich, on the brief).

Wendy L. Mager, Princeton, submitted a brief on behalf of amici curiae Chubb & Son—a Division of Federal Insurance Company, Farmers Insurance Group, Hartford Insurance Group, Liberty Mutual Insurance Company, Royal & SunAlliance, Selective Insurance Company of America, St. Paul Fire and Marine Insurance Company and Zurich American Insurance Company (certain members of the Complex Insurance Claims Litigation Association (Smith, Stratton, Wise, Heher & Brennan, attorneys).


Justice LONG delivered the opinion of the Court.

Because of the scientific uncertainties inherent in pinpointing the onset and course of progressive environmental injury, traditional liability insurance contract language did not resolve the question of when an "occurrence" takes place in that context. In Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 650 A.2d 974 (1994), we adopted...

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